State v. Mark Amesbury
This text of State v. Mark Amesbury (State v. Mark Amesbury) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Supreme Court
No. 2023-122-C.A. (P3/22-2632A)
State :
v. :
Mark Amesbury. :
ORDER
The defendant, Mark Amesbury, who is not represented by counsel, appeals
from a Superior Court order denying his appeal from a magistrate’s decision to deny
his motion to dismiss a criminal complaint alleging twenty-nine violations of fire
safety laws. This Court directed the parties to appear and show cause why the issues
raised in this appeal should not be summarily decided. After carefully reviewing the
record, we conclude that cause has not been shown and that this case may be decided
without further briefing or argument. For the reasons set forth herein, we affirm the
order of the Superior Court.
On April 19, 2022, the state filed a twenty-nine-count criminal complaint
against defendant in District Court,1 citing G.L. 1956 § 23-28.3-9 as statutory
1 We note that the complaint is numbered from one to thirty, but skips number twenty-eight; therefore, there are only twenty-nine counts in total.
-1- grounds for all offenses.2 The alleged violations took place at various addresses in
Pawtucket.
The defendant entered a plea of not guilty in District Court and waived his
right to a jury trial. He thereafter moved to dismiss the complaint, and his motion
was denied. He additionally moved to disqualify the judge, a request that also
appears to have been denied. The defendant then filed a motion to withdraw his
waiver of a jury trial, and the case was transferred to Superior Court in accordance
with Rule 23 of the District Court Rules of Criminal Procedure.3
After the case was docketed in Providence County Superior Court, defendant
filed a motion to dismiss the complaint, proffering several arguments in support of
his motion. The record reflects that defendant’s motion was denied after a hearing
before the general magistrate on October 26, 2022. The defendant then filed a
motion for an evidentiary hearing and a motion to reconsider. The defendant’s
2 General Laws 1956 § 23-28.3-9 provides in pertinent part that “any building owner or lessee who violates or fails or refuses to comply with” fire safety statutes, codes, or orders “shall be guilty of a misdemeanor * * *.” 3 Rule 23 of the District Court Rules of Criminal Procedure provides:
“If the defendant does not file a waiver within ten (10) days of his or her initial appearance before the [District] Court, or if the defendant is allowed, for good cause shown, to withdraw his or her waiver after said ten-day period, the clerk shall transmit the record in the case to the clerk of the Superior Court for the county in which the offense was committed.”
-2- motion to reconsider was denied after a hearing before the general magistrate on
December 16, 2022. Orders reflecting the denial of the motion to dismiss and the
motion to reconsider were entered on April 28, 2023, after the case had been certified
to this Court.
The defendant appealed the magistrate’s decision to a justice of the Superior
Court on December 28, 2022. Although defendant’s notice of appeal indicated that
he was appealing from an order entered on December 16, 2022—the motion to
reconsider—and does not reference the denial of his motion to dismiss on October
26, 2022, the hearing justice treated defendant’s appeal as an appeal from the denial
of both motions. The hearing justice agreed with the magistrate’s decision that the
case “‘screams for a trial’ to fully develop evidence and testimony for the finder of
fact to weigh.” The hearing justice denied defendant’s appeal, and defendant filed
a timely notice of appeal to this Court.
Before this Court, defendant argues that (1) the magistrate and hearing justice
“wrongfully treated [his] motion as a 9.1 Motion to Dismiss”; (2) the charges should
have been dismissed because “the [s]tate failed to produce the [j]oint report that is
required under Rhode Island Fire Code 7.1.11.2.1”; (3) double jeopardy applies; (4)
the “Pawtucket Fire Marshal cannot sign the inspection report and compliance order
based on hearsay”; and (5) defendant “cannot be criminal charged [sic] for a
-3- [c]ommercial [t]enant [a]lleged fire code violation.” None of the arguments raised
in this interlocutory appeal, however, are properly before us.
We first address the double-jeopardy argument raised by defendant.
“Ordinarily, a denial of a motion to dismiss a criminal action is not a final judgment
from which an appeal may be taken. However, when the motion to dismiss is based
upon double-jeopardy and collateral-estoppel grounds, [the Court] allow[s] an
immediate appeal.” State v. Minior, 175 A.3d 1202, 1206 (R.I. 2018) (quoting State
v. Wiggs, 635 A.2d 272, 275 (R.I. 1993)). Although defendant argues on appeal that
his case should have been dismissed on double-jeopardy grounds, he did not address
the issue in his Superior Court memoranda. Furthermore, defendant has failed to
provide this Court with a transcript of the hearings on his motion to dismiss and his
motion for reconsideration. Thus, whether defendant raised the issue of double
jeopardy orally at one of these hearings before the magistrate cannot be determined.
Article I, Rule 11(a) of the Supreme Court Rules of Appellate Procedure
provides, in part, that “[p]romptly after filing the notice of appeal the appellant shall
comply with the provisions of Rule 10(b) or (c) and shall take any other action
necessary to enable the clerk to assemble and transmit the record.” Art. I, Rule 11(a)
of the Supreme Court Rules. “Under this rule, it is the duty of the appellant ‘to
ensure that the record is complete and ready for transmission.’” Small Business Loan
Fund Corporation v. Gallant, 795 A.2d 531, 532 (R.I. 2002) (quoting Procopio v.
-4- PRM Concrete Corp., 711 A.2d 650, 651 (R.I. 1998) (mem.)). Indeed, “[i]n the
absence of a transcript, this Court cannot determine how the trial justice came to a
decision or, in turn, whether the trial justice erred in coming to that decision.”
Boulais v. DiPaola, 305 A.3d 1270, 1271 (R.I. 2024) (mem.).
The record, as transmitted to this Court, is devoid of any reference to the issue
of double jeopardy. “Consequently, we have ‘no alternative but to deny the appeal
and uphold the trial justice’s findings.’” Boulais, 305 A.3d at 1271 (quoting Palange
v. Palange, 243 A.3d 783, 784 (R.I. 2021) (mem.)).
The defendant’s remaining arguments are not properly before us because they
do not fall within an exception to the general rule against interlocutory appeals in
criminal cases. See Minior, 175 A.3d at 1206 (“It is well settled in this jurisdiction
that appeals from interlocutory orders are not permitted unless they fall within
certain well-defined exceptions.” (quoting Boranian v. Richer, 983 A.2d 834, 837
(R.I. 2009))).
For the reasons stated herein, we affirm the order of the Superior Court. The
record shall be returned to the Superior Court.
Entered as an Order of this Court this 24th day of April, 2024.
By Order,
____________________________ Clerk
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